03-03-2005 09:56									#121
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quote: Originally posted by Imran Siddiqui Using the laws of other states as an example of the common movement of the law can be very important in a case. Many cases have been ruled on the basis that other states are moving towards a view.

I agree with you 100% on that, but it doesn't really change my point. There'd be no reason to cite other state precedent if your own state's precedents clearly supported your case. Other state precedents are used as primary support for cases in which 1. your state has never ruled on the issue, and other state precedents would allow you to win your case or 2. your state's precedents would force you to lose your case, but there's a trend in other states that support's your theory and, if your state court adopts that theory, then you'll win.

If I were arguing a case, I'd rather be arguing it based on precedent in my own state than teying to convince my state to adopt another state's methods, as your own state's precedents are much more persuasive (unless the court really wants to adopt the other state's methods, and is looking for an escuse to adopt them. That's activism, and that looks much like why Kennedy cited foreign precendent here)

quote: Want me to cite cases?

Thank you for doing so. Those cases were both using precedent based on issues that were decided well before the US was even formed. Since the US had no precedent on the issues, it makes sense that they'd rely heavily on the precedent of other countries (especially in the 1820 case,as both France and Britain could militarily force the US to enforce piracy laws if need be) This case is different, as we've has 200+ years of dealing with capital crimes involving 16-18 year olds.

quote: And Kennedy did look at them as well. He also looked at the persuasive authority of foriegn practice, and decided that those combined indicated a movement country and international wide banning execution for those under 18.

Since there is US precedent on this matter, the foreign practices should merit only a cursory mention at best.

	03-03-2005 10:06									#122
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And come to think of it (with regards to people argueing - although rightly in my view - that world opinion/world precident should have no bearing on the court's deliberations)...

Wasn't the decision to declare segregation unconstitutional taken (at least in part) because it was thought that the country at the forefront of fighting against communist dictatorships in the world should not be seen around the globe to be infringing on the freedoms of a large majority of it's own people. Surely that is taking a decision based on world opinion?

	03-03-2005 10:07									#123
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quote: There'd be no reason to cite other state precedent if your own state's precedents clearly supported your case.

Well, you'd want other state precedent to back your own state's precedent. You can't just rely on your own precedent. You have to make sure to prove that your state isn't backward.

quote: unless the court really wants to adopt the other state's methods, and is looking for an escuse to adopt them. That's activism, and that looks much like why Kennedy cited foreign precendent here

Was ending segreation 'activism'? After all, there was no precedent that spoke to what happened in Brown v. Board. Could it be that Kennedy was persuaded that the US was going in the wrong direction? After all, he was one of the 5 who said we can execute 17 and 18 year olds back in 1989.

quote: Those cases were both using precedent based on issues that were decided well before the US was even formed.

So? No one still voted on them, even in their own home countries. Britain has been around for much longer, and still adopts customary international law based on international precedent. And the US Constitution does say the 'law of nations' is law of the land. "Law of nations" stands for the custonary law, whether it happened before the formation of the US or afterwards.

Oh, and The Pequete Habana also used custom after the formation of the US, such as how the US treated Mexican fishing boats in the Mexican-American War of 1846. That was not a result of Congressional law.

quote: This case is different, as we've has 200+ years of dealing with capital crimes involving 16-18 year olds.

Doesn't matter. International custom was moving towards 18 as the age of execution. Only the US, Saudi Arabia, China, and one or two other countries have executed people under 18. The custom was against us, and it doesn't matter if we've dealt with those crimes, we still have to consider custom.

quote: Since there is US precedent on this matter, the foreign practices should merit only a cursory mention at best.

I disagree, especially since the US has become one of the last 5 states in the world to engage in the practice. Foriegn practice is very relevent, especially since it has become custom.. which is Constitutionally protected ("law of nations" again).

	03-03-2005 10:31									#124
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quote: Originally posted by Imran Siddiqui Was ending segreation 'activism'? After all, there was no precedent that spoke to what happened in Brown v. Board. Could it be that Kennedy was persuaded that the US was going in the wrong direction? After all, he was one of the 5 who said we can execute 17 and 18 year olds back in 1989.

Regretably, I haven't yet read the Brown decision yet (its coming up within the next few weeks in my Con Law class). From my understanding, it was mainly based on seperate but equal being unequal. Not sure how much international opinion mattered in that decision, so I can't really answer how it applies here.

quote: quote: Those cases were both using precedent based on issues that were decided well before the US was even formed. So? No one still voted on them, even in their own home countries. Britain has been around for much longer, and still adopts customary international law based on international precedent. And the US Constitution does say the 'law of nations' is law of the land. "Law of nations" stands for the custonary law, whether it happened before the formation of the US or afterwards. Oh, and The Pequete Habana also used custom after the formation of the US, such as how the US treated Mexican fishing boats in the Mexican-American War of 1846. That was not a result of Congressional law.

My first point (the US not existing) was based on the fact that it was free to draw precedent from somewhere if necessary (though it wasn't obligated to do so.)

The "law of nations" helped me think of a further distinction that I hadn't thought of. Another reason why using international precedent in these cases would make sense is because these dealt with international issues. They inherently involve more than one state, so you'd have to look at other nation's laws out of necessity. This is given support by the fact that the "law of nations" language is in Art 1 §8, clause 10, which gives Congress the right to "define and punish Piracies and Felonies on the High Seas, and offenses against the Law of Nations." Structurally, that implies such inherently international matters that occur outside of the territorial US; why else would it be included with those crimes mentioned above?

Deciding when to use our death penalty is an internal matter, not inherently international and, thus, has nothing to do with the "laws of nations" as mentioned in the Constitution. The 8th Amendment does not mention the "law of nations."

quote: Doesn't matter. International custom was moving towards 18 as the age of execution. Only the US, Saudi Arabia, China, and one or two other countries have executed people under 18. The custom was against us, and it doesn't matter if we've dealt with those crimes, we still have to consider custom. I disagree, especially since the US has become one of the last 5 states in the world to engage in the practice. Foriegn practice is very relevent, especially since it has become custom.. which is Constitutionally protected ("law of nations" again).

Again, since this isn't an inherently international matter, I don't see why foreign practice should be very persuasive to SCOTUS. If its persuasive anywhere in our government, it should be persuasive in Congress.

	03-03-2005 10:49									#125
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quote: I haven't yet read the Brown decision yet (its coming up within the next few weeks in my Con Law class). From my understanding, it was mainly based on seperate but equal being unequal. Not sure how much international opinion mattered in that decision, so I can't really answer how it applies here.

Not arguing international views coming into play, but lack of legal authority. It was about how segregation makes black kids feel inferior, which is why it was unequal. It mainly used psychological studies over cases.

quote: the right to "define and punish Piracies and Felonies on the High Seas, and offenses against the Law of Nations." Structurally, that implies such inherently international matters that occur outside of the territorial US; why else would it be included with those crimes mentioned above?

Because punishing piracy and felonies on the high seas is a part of customary international law. And why do you think piracy always deals with international issues? What if a person from Virginia went into the high seas and picked off US vessels? No international incident dealt with, but definetly allowed to be punished under international custom.

quote: Deciding when to use our death penalty is an internal matter, not inherently international and, thus, has nothing to do with the "laws of nations" as mentioned in the Constitution.

Laws of nations applies to customary international law. It doesn't have to be an international incident. Many customary issues deal with internal policy (Genocide, Apartheid, Torture, etc). The US has signed treaties on those issues, but those prohibitions apply to people from countries which has not signed the treaties. The US can try those people even though their countries don't talk about it. Its solely based on custom (ius cogens, which is like a super custom).

The article did not say laws of nations dealing with international issues, it said laws of nations. And yes, back then there were customary law issues dealing with internal policy (such as the piracy example I used above, which is solely a domestic thing).

There has been NO implication that 'laws of nations' only applied to those which are international issues. Custom does not solely apply to issues involving two or more countries.

Furthermore, there has been NO requirement to look at the laws of other country's if an issue applies to them. US Courts have, on many occasions, said in matter of international issues, we are using our law and not looking at the country's law. So that doesn't fit either.

quote: I don't see why foreign practice should be very persuasive to SCOTUS.

Because it indicates perhaps a new custom. And it may help guide the jurisprudence by looking at the legal reasoning of those foreign judgements. When they consider execution of those under 18 to be cruel, wouldn't you be interested why they claim that?

	03-03-2005 11:09									#126
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quote: Originally posted by Imran Siddiqui quote: the right to "define and punish Piracies and Felonies on the High Seas, and offenses against the Law of Nations." Structurally, that implies such inherently international matters that occur outside of the territorial US; why else would it be included with those crimes mentioned above? Because punishing piracy and felonies on the high seas is a part of customary international law. And why do you think piracy always deals with international issues? What if a person from Virginia went into the high seas and picked off US vessels? No international incident dealt with, but definetly allowed to be punished under international custom. quote: Deciding when to use our death penalty is an internal matter, not inherently international and, thus, has nothing to do with the "laws of nations" as mentioned in the Constitution. Laws of nations applies to customary international law. It doesn't have to be an international incident. Many customary issues deal with internal policy (Genocide, Apartheid, Torture, etc). The US has signed treaties on those issues, but those prohibitions apply to people from countries which has not signed the treaties. The US can try those people even though their countries don't talk about it. Its solely based on custom (ius cogens, which is like a super custom). The article did not say laws of nations dealing with international issues, it said laws of nations. And yes, back then there were customary law issues dealing with internal policy (such as the piracy example I used above, which is solely a domestic thing). There has been NO implication that 'laws of nations' only applied to those which are international issues. Custom does not solely apply to issues involving two or more countries. Furthermore, there has been NO requirement to look at the laws of other country's if an issue applies to them. US Courts have, on many occasions, said in matter of international issues, we are using our law and not looking at the country's law.

Assuming everything else you said is true, I don't see how the bolded part supports your argument that its alright for SCOTUS to use foreign custom to substantially decide cases. Even in cases in which we are dealing with international issues, we are applying our own laws, as indicated by Congress' right to define and punish the Laws of Nations. Doesn't that explicitly gives Congress the right to define what exactly international customs are (at least, what they are as far as the US govt. is concerned?) How does that support the propsition that foreign practices are a legitimate basis on which to rule on our Constitutional issues? If anything, that would seem to indicate the opposite; that international customs are only as important as Congress decides to make them.

quote: Because it indicates perhaps a new custom. And it may help guide the jurisprudence by looking at the legal reasoning of those foreign judgements.

It may indicate a new foreign custom, but what does that matter when deciding on the American Constitution? I can intellectually understand that a court may compare them; I just don't think they should have much weight.

	03-03-2005 11:22									#127
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quote: I don't see how the bolded part supports your argument that its alright for SCOTUS to use foreign custom to substantially decide cases.

It is showing you tthat it is a matter of choice on when the Supreme Court can use foriegn precedent. They are not required to do so, but they can also use foriegn cases and statutes if they think it is important.

quote: . Doesn't that explicitly gives Congress the right to define what exactly international customs are (at least, what they are as far as the US govt. is concerned?)

That would defeat the purpose of including 'offenses against the laws of nations'. Congress may punish violation of those laws, but those laws of nations come from customary international law, which Congress may include a penalty. How can Congress decide what laws the countries of the world must follow ('laws of nations' by definition applies to more than one country)?

Here is an excerpt of The Paquete Habana, quoting part of Hilton v. Guyot:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.

quote: It may indicate a new foreign custom, but what does that matter when deciding on the American Constitution?

Because their legal reasoning may be a persuasive way of interpreting what vague words in the US Constitution should mean.

	03-03-2005 11:34									#128
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Re American law conforming to world norms: More fundamentally, however, the basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law—including not only such explicit provisions
of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. The Court-pronounced exclusionary rule, for example, is distinctively
American. When we adopted that rule in Mapp v. Ohio, 367 U. S. 643, 655 (1961), it was “unique to American
Jurisprudence.” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 415 (1971) (Burger, C. J., dissenting). Since then a categorical exclusionary rule has been “universally
rejected” by other countries, including those with rules prohibiting illegal searches and police misconduct, despite the fact that none of these countries “appears to have any alternative form of discipline for police that is effective in preventing search violations.” Bradley, Mapp Goes Abroad, 52 Case W. Res. L. Rev. 375, 399–400 (2001). England, for example, rarely excludes evidence found during an illegal search or seizure and has only recently begun excluding evidence from illegally obtained confessions.

...

The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners,or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry. Scalia continues to pwn all.

	03-03-2005 11:40									#129
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quote: Originally posted by Imran Siddiqui quote: I don't see how the bolded part supports your argument that its alright for SCOTUS to use foreign custom to substantially decide cases. It is showing you tthat it is a matter of choice on when the Supreme Court can use foriegn precedent. They are not required to do so, but they can also use foriegn cases and statutes if they think it is important. quote: . Doesn't that explicitly gives Congress the right to define what exactly international customs are (at least, what they are as far as the US govt. is concerned?) That would defeat the purpose of including 'offenses against the laws of nations'.

It says that Congress may define and punish offenses against the Law of Nations. To me, that says that Congress defines the Law of Nations (not as they apply to all nations, but as they apply to the US. As you rightly pointed out, Congress doesn't create the laws for the world) This means that if there was a custom that Congress didn't agree with, it simply wouldn't define a breach of that custom to be a punishable "offense aginast the Law of Nations." The language doesn't indicate to me that Congress is bound to punish all breaches to the "Law of Nations" If it were, then it wouldn't be given the power to "define" the offense against the Law of Nations. This implies that Congress decides which "Laws of Nations" are relevant to the US and which "Laws of Nations" are irrelevant for us. Therfore, international custom is only as important to US law as Congress says it is, and Congress determines which customs cannot be breached.

That interpretation provides Constitutional support for a claim that it's up to Congress, not SCOTUS, to say what part of the "Law of Nations" is important to the US. That would seem to make it wrong to base a Constiutional decision on foreign customs not designated by Congress as being important.

quote: I recommend reading The Paquete Habana to see how customary international law is important in our jurisprudence.

Thanks for the recommendation. It sounds like it would be interesting.

quote: Because their legal reasoning may be a persuasive way of interpreting what vague words in the US Constitution should mean.

I'm not arguing that the foreign processes couldn't be intellectually persuasive to a justice, just that they shouldn't serve as the main basis for a ruling; rather, they are the last resort, the "cherry on top" of a mountain of persuasive US based evidence. Using them as a fundamental part of a ruling, IMO, would be wrong.

	03-03-2005 11:40									#130
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Damn, Scalia did pwn the majority with that...

	03-03-2005 11:40									#131
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Scalia has always been hostile to looking at foriegn law by not looking at the numerous precedents where the Court has looked to laws of other countries as persuasive authority. Simply because some laws are unique to American jurisprudence, doesn't mean that in those situations which are similar to foriegn issues, the Court should not even consider foriegn authority as persuasive authority, because it has done so in the past.

Scalia should know better .

	03-03-2005 11:45									#132
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quote: It says that Congress may define and punish offenses against the Law of Nations. To me, that says that Congress defines the Law of Nations (not as they apply to all nations, but as they apply to the US. As you rightly pointed out, Congress doesn't create the laws for the world) This means that if there was a custom that Congress didn't agree with, it simply wouldn't define a breach of that custom to be a punishable "offense aginast the Law of Nations."

The Court has not agreed with that reading. It has applied international custom in plenty of cases where Congress has not legislated. Congress gets to assign criminal or civil punishments, but customary international law may be invoked by the Court in deciding cases on equity basis.

quote: I'm not arguing that the foreign processes couldn't be intellectually persuasive to a justice, just that they shouldn't serve as the main basis for a ruling; rather, they are the last resort, the "cherry on top" of a mountain of persuasive US based evidence. Using them as a fundamental part of a ruling, IMO, would be wrong.

You still haven't convinced me why. Looking at the practice at the rest of the world, and deciding the US is backwards in defining such vague ideas like 'cruel and unusual punishment' seem to be a valid exercise of the Court's power. It has to define the term in some way.

Furthermore, the case was mainly decided on the fact that US STATE practice had shown a consensus. Foriegn practice was used as support. The decision had 4 parts. It was the 4th part, which was at the end, which talked about international practice.

	03-03-2005 11:50									#133
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quote: Originally posted by Drake Tungsten Damn, Scalia did pwn the majority with that...

He continued the pwnage for several paragraphs between the two I quoted. The most persuasive and on point bit was the one about us being one of only six countries that allow abortion on demand until the point of viability. I'd laugh my ass off if an anti-abortion group connected that statement with the special weight SCOTUS gave international opinion and tossed the arguement back in their faces.

	03-03-2005 11:51									#134
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This is good, too.

quote: It happens that only 15 years ago the Supreme Court found that the kind of statute in question was constitutional. But, rather than overturning that case, the court yesterday found that in the last 15 years a national consensus against such punishment had emerged. The majority based that conclusion on the fact that "18 states -- or 47 percent of states that permit capital punishment -- now have legislation prohibiting the execution of offenders under 18," and four of those states have adopted such legislation since the Supreme Court's ruling of 15 years ago. As Justice Antonin Scalia fumed in his dissent: "Words have no meaning if the views of less than 50 percent of death penalty States can constitute a national consensus. Our previous cases have required overwhelming opposition to a challenged practice, generally over a long period of time." In this case, a majority of relevant states approve the practice.

quote: I'd laugh my ass off if an anti-abortion group connected that statement with the special weight SCOTUS gave international opinion and tossed the arguement back in their faces.

It would indeed be hilarious, but I doubt anything would come of it. I doubt the SCOTUS would look so kindly upon the international consensus in that case...

	03-03-2005 11:52									#135
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Wycoff, here is a part of Kennedy's opinion:

This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments." 356 U. S., at 102-103 (plurality opinion) ("The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime"); see also Atkins, supra, at 317, n. 21 (recognizing that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved"); Thompson, supra, at 830-831, and n. 31 (plurality opinion) (noting the abolition of the juvenile death penalty "by other nations that share our Anglo-American heritage, and by the leading members of the Western European community," and observing that "[w]e have previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual"); Enmund, supra, at 796-797, n. 22 (observing that "the doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe"); Coker, supra, at 596, n. 10 (plurality opinion) ("It is ... not irrelevant here that out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue").

also:

The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.

It was supporting and not controlling in the decision.

	03-03-2005 11:55									#136
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re "national" consensus:
Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position. That the Senate and the President—those actors our Constitution empowers to enter into treaties, see Art. II, §2—have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces. That the reservation to the ICCPR was made in 1992 does not suggest otherwise, since the reservation still remains in place today.

	03-03-2005 11:58									#137
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Also, this is O'Conner's viewpoint on the issue of foriegn precedent. O'Conner dissented with Kennedy because she found no national concensus, but also disagreed with Scalia over the role of international rulings.

Nevertheless, I disagree with Justice Scalia's contention, post, at 15-22 (dissenting opinion), that foreign and international law have no place in our Eighth Amendment jurisprudence. Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency. See Atkins, 536 U. S., at 317, n. 21; Thompson, 487 U. S., at 830-831, and n. 31 (plurality opinion); Enmund, 458 U. S., at 796-797, n. 22; Coker, 433 U. S., at 596, n. 10 (plurality opinion); Trop, 356 U. S., at 102-103 (plurality opinion). This inquiry reflects the special character of the Eighth Amendment, which, as the Court has long held, draws its meaning directly from the maturing values of civilized society. Obviously, American law is distinctive in many respects, not least where the specific provisions of our Constitution and the history of its exposition so dictate. Cf. post, at 18-19 (Scalia, J., dissenting) (discussing distinctively American rules of law related to the Fourth Amendment and the Establishment Clause). But this Nation's evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries. On the contrary, we should not be surprised to find congruence between domestic and international values, especially where the international community has reached clear agreement--expressed in international law or in the domestic laws of individual countries--that a particular form of punishment is inconsistent with fundamental human rights.

	03-03-2005 12:07									#138
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Does Scalia routinely call other justices morons even in the footnotes of his dissents?

	03-03-2005 12:11									#139
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Yes, it's standard practice for him. Especially in cases where he only has 2 other justices defending his view (and on the issue of whether foriegn precedent should be looked at, O'Conner is with Kennedy, Ginsburg, Stevens, Souter, and Breyer).

	04-03-2005 02:50									#140
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Imran,

We both know that SCOTUS can decide pretty much whatever it wants using whatever reasoning it wants, so long as 5 members agree on the verdict. The only ways to hold them accountable are Constitutional Amendments and Impeachment. I'm aware that its perfectly possible for an SC Justice to completely justify his verdict using only foreign practice. Though it appears in this case that American practices were the paramount reason for Kennedy's decision (with the foreign reasons used to further support the change, like a "cherry on top"), I can easily envision a case in which SCOTUS relies solely on foreign practices, contradicting the practices of the US and all 50 states. Why? Because there's nothing to prevent SCOTUS from doing so.

I think SCOTUS has to be careful when using foreign practices in its reasoning. The reason is because the US and its Constitution is distinct from other countries. We may share common issues, but those issues will be presented in another context, a context that is the result of our different history , government system, customs, court precedents, religiou affiliations, etc. The simple fact that the issues are the same doesn't mean that the same remedies should be used. Its quite possible that their remedies aren't appropriate for our culture, just as our remedies may not be appropriate for their culture.

Foreign practices can be useful. Cases such as the ones that you presented are the quintessential foreign procedure cases. If a case involves other countries its obvious that international standards should be treated in high regard.

I think that this becomes less clear when dealing with purely domestic issues. Foreign practices can reasonably be used as further support for an argument backed by a large amount of domestic evidence that the US should adopt a certain policy that's widely used in other countires. Afterall, the judge could come to this conclusion wihtout that foreign support, and he's using it to further strengthen a position that he would have taken regardless. There's not much harm done in that particular instance (and this seems to be such an instance), but heavily emphasizing on foreign policies in these situations can create a disturbing precedent that could lead to the next possibility.

I think that it would be completely inappropriate for the court to adopt a foreign policy that is out of step with all or almost all of the states and the US. I think that this is wrong for two reasons. First of all, I think that applying foreign remedies in the American context without American support could create the context problems that I mentioned above.

Secondly, it shows that the court is wildly out of step with the country. SCOTUS decisions are monumental, and can only be overturned through great effort. If there is so little support for a position in the country that they have to rely primarily or solely on foreign practice, that indicates that they shouldn't decide that way. At least give the states and/or Congress an opportunity to decide for themselves. This goes beyond mere Consitutional interpretation; its activism. Activism should only be undertaken in the most egregious cases, because it sidesteps the democratic process altogether.

My fear with decisions such as the one we are discussing, the majority's opinion emphasizes foreign practices to too great of a degree. That provides a foothold for a decision based entirely or primarily on foreign policies. A judge can justify his decision by pointing to a decision like this one, then stating "SCOTUS has clearly taken foreign practices into the utmost regard when making our decisions, so it is clear that we must hold..." Even though this case had significant internal justifications , the future case that uses the language I wrote might not. I know that a justice could do this anyway, but a decision like this makes such a position more justifiable.

	04-03-2005 05:30									#141
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quote: Originally posted by Imran Siddiqui Shouldn't it be US Supreme Court... seeing as how MarkG started the thread? Anyway, I'm with GePap. If we say that 18 is the dividing line, we shouldn't just violate it whenever we feel like. It gives more creedence to nuts like Ozzy . Though, of course, if they are over 18, fry 'em good

Ah, there we go. Imran & I have been agreeing on too many things lately. It's a relief to see we're at exact opposites again.

IMHO: The Death Penalty is "cruel and unusual" punishment, and should never be imposed.

However, if I'm wrong, then I see nothing in the Constitution which would differentiate a 17-year-old killer for an 18-year-old killer. Teen killers are a problem, and they deserve no extra Constitutional protection.

	04-03-2005 05:47									#142
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My thoughts on the O'Connor dissent:

http://www.oneandfour.org/archives/...connor_dis.html

Without realizing it as I wrote the earlier break down of Kennedy's majority opinion for Roper v. Simmons, I seem to have made many of the same points Justice O'Connor made in her dissent.

She calls into question the assertion in the majority opinion that there is a substantive "consistency of direction" that would warrant changing the law. Justice O'Connor disputes whether there truly has been a great movement by the public against all minor executions, and states there can be little comparison between the movement in the last 15 years and the movement that was evident at the time Thompson v. Oklahoma was decided. She does grant that national mood and state law is a good indicator of "contemporary values" and should be given "great weight", she places more emphasis on the independent moral judgments of the court itself, taking us to the main issues this case deals with: the capacity and competency of youth.

O'Connor doesn't make any sweeping endorsements of the rationality and responsibility of young people, saying "It is beyond cavil that juveniles as a class are generally less mature, less responsible, and less fully formed than adults, and that these differences hear on juveniles' comparative moral culpability." However instead of accepting that generality as sufficient justification for overturning the juvenile death penalty, she provides a tempered though surprisingly spot-on youth rights rebuttal.

Justice O'Connor states that the Court was wrong to apply a general assumption about youth as a class to all youth within that class. Such an action ignores the significant number of outliers who can very well demonstrate adult levels of reasoning and understanding. Specifically she points to the facts of the case before them, of Christopher Simmons, 17, who disturbingly murdered a woman after much pre-meditation, planning, and prior discussion, "Simmons' prediction that he could murder with impunity because he had not yet turned 18-- though inaccurate--suggests that he did take into account he perceived risk of punishment in deciding whether to commit the crime." I don't see how any rational person could look at the details of this case and conclude anything different. Certainly Simmons weighed the punishment.

If this is the chief point in dispute regarding the rationality of youth, we should quite clearly declare most youth, even those of far younger ages than Christopher Simmons, as rational. A simple pro vs. con analysis is intuitive and I recall it being applied by me and my friends as far back as my memory goes, to 7 or 8. The factors we considered in that analysis were no doubt limited because of our limited experience. For example a friend refused to call a 1-800 number for fear he would get in trouble with his parents and ramp up massive charges on the bill. He was wrong to confuse 1-800 with 1-900, but that doesn't affect the fact he made a rational analysis and weighed the pros vs. cons of the situation. I believe we were 7 or 8 at the time.

I contend that cases like this are not merely outliers, as Justice O'Connor implies, but far and away the majority of youth interactions. However I will save that discussion for another day. No matter what proportion of rational youth to irrational youth you decide is accurate, it is important to recognize that both exist. The Court made the faulty assumption that 100% of individuals 17 and under are irrational (or should be treated that way) and 100% of individuals 18 and over are rational (or should be treated that way). This, as O'Connor notes is an illogically inflexible standard to apply, and judges solely on the aggregate, and ignores individual cases:

Although it may be that many 17-year-old murderers lack sufficient maturity to deserve the death penalty, some juvenile murderers may be quite mature. Chronological age is not an unfailing measure of psychological development, and common experience suggests that many 17-year-olds are more mature than the average young "adult." In short, the class of offenders exempted from capital punishment by today's decision is too broad and too diverse to warrant a categorical prohibition. Indeed, the age-based line drawn by the Court is indefensibly arbitrary--it quite likely will protect a number of offenders who are mature enough to deserve the death penalty and may well leave vulnerable many who are not.
Justice O'Connor then attacks any comparisons between young people and the mentally retarded (you go girl!). She states that the mentally retarded are by definition lacking in a sufficient level of cognition and development. Conversely,

"There is no such inherent or accurate fit between an offender's chronological age and the personal limitations which the Court believes make capital punishment excessive for 17-year-old murderers. Moreover, it defies common sense to suggest that 17-year-olds as a class are somehow equivalent to mentally retarded persons with regard to culpability or susceptibility to deterrence."
O'Connor then states that a closely tailored solution existed in the form of the criminal courts who weighed the factors of each case on an individual basis, and judged the maturity and competence of each offender on an individual basis. No evidence was brought by the other side stating that this process was inadequate or faulty. "I would not be so quick to conclude that the constitutional safeguards, the sentencing juries, and the trial judges upon which we place so much reliance in all capital cases are inadequate in this narrow context."

She then goes on to forge a middle ground between Justice Kennedy and Justice Scalia on the merit and applicability of international practice in interpreting the 8th Amendment. It does have some degree of bearing, but should never be a determining factor. In so far as it does, it is only because of the nature of the 8th Amendment and the evolving standards of decency in civilized society that inform an interpretation of a 200 year old Amendment.

Overall I am very pleased with Justice O'Connor's dissent, though sadly none of the other Justices joined her in it. O'Connor has gained a reputation as the most powerful Supreme Court Justice, and has often been the deciding factor in many important 5-4 decisions. Where Sandra goes, so goes the Court. However it is not the case with Roper v. Simmons. Not only was she not part of the majority in this 5-4 decision, but her dissent was not even joined by the other 3 dissenters. I have yet to read Justice Scalia's dissent, but I doubt I will find close to as much commonality and agreement with Justice O'Connor's. Much of her dissent was spot-on. Regardless of how one views the outcome, this case was terribly decided, was based on very shaky legal evidence and committed many leaps of judgment that Justice O'Connor rightly called out.

http://www.oneandfour.org/archives/...connor_dis.html

	04-03-2005 05:52									#143
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This is one of the better threads I've seen recently.

Cheers.

	04-03-2005 10:41									#144
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quote: Activism should only be undertaken in the most egregious cases, because it sidesteps the democratic process altogether.

Now, if that be your stance, would you not concur that in a situation where there is near unanimity in the world about the immorality of a practice (and that practice isn't specifically stated as allowable under the Constitution) that that would be one of the 'most egregious cases'?

Furthermore, whether or not a practice is egregious can ONLY be assessed from hindsight in the future. After all, there were plenty of people who thought Brown v. Board of Education was horribly decided and was definetly activism (and it probably was, IMO).

However, the term 'activist' gets thrown around by BOTH sides when the court strikes down a law that they agreed with. After all, a interpretation is never the same for everyone, so any striking down of a law would be viewed as activist by someone (if the court solely used foriegn practice to strike down the death penalty because of 'cruel and unusual', I'd argue that is consistent with interpreting 'cruel and unusual punishment', because no where does it say what should be used in determination of that).

	04-03-2005 16:03									#145
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quote: Originally posted by Zulu Elephant As far as Im concerned, the fewer people executed, the better - until the DP is abolished. The reasons given are obviously pretty shoddy and if I disagreed with the decision I'd be spitting nails. However, some people have argued that the court is overstepping its mark and that the legislature should be deciding these things. How does this compare to the court's decision to abolish segregation - isn't that an example of the court making a decision that would never (at the time) have been passed by congress due to public hostitility in many states

Segregation on its face violated a have dozen provisions of the constitution, and was thus fair game. The majority here resorts to extremely thin arguments bordering on sophistry in order to establish a reason why SCOTUS has jurisdiction on this matter. It's a bad precedent and like you I shudder to think of the instance when it is used on an issue that I politically disagree with.

	04-03-2005 16:09									#146
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quote: Originally posted by DinoDoc Does Scalia routinely call other justices morons even in the footnotes of his dissents?

Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position. That the Senate and the President—those actors our Constitution empowers to enter into treaties, see Art. II, §2—have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces. That the reservation to the ICCPR was made in 1992 does not suggest otherwise, since the reservation still remains in place today. [7]










[7] Morons!

	04-03-2005 16:15									#147
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quote: Originally posted by Zulu Elephant And come to think of it (with regards to people argueing - although rightly in my view - that world opinion/world precident should have no bearing on the court's deliberations)... Wasn't the decision to declare segregation unconstitutional taken (at least in part) because it was thought that the country at the forefront of fighting against communist dictatorships in the world should not be seen around the globe to be infringing on the freedoms of a large majority of it's own people. Surely that is taking a decision based on world opinion?

To the extent this is true, it isn't what we want to see from the courts, ie driven by political rather than legal considerations. Again just because we agree with the outcome it doesn't justify the means to achieve that outcome . Aside from the potential for massive abuse that this gives our unelected serving for life Justices, it also absolves the political branches of their responsibility to act and does so in a way that allows very little room for reconsideration should a later group of good justices (who actually care about stuff like the law and precedence) wish to alter it.

	04-03-2005 20:15									#148
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quote: Originally posted by Imran Siddiqui Now, if that be your stance, would you not concur that in a situation where there is near unanimity in the world about the immorality of a practice (and that practice isn't specifically stated as allowable under the Constitution) that that would be one of the 'most egregious cases'?

Maybe, maybe not. If none of the states feel that something should be decided in a way, then IMO foreign practice is not good enough of a reason to decide against them (unless its clear that the practice, while universally held in the US, cannot pass the heightened scrutiny test against laws that are primarily designed for discriminatory purposes)

quote: Furthermore, whether or not a practice is egregious can ONLY be assessed from hindsight in the future. After all, there were plenty of people who thought Brown v. Board of Education was horribly decided and was definetly activism (and it probably was, IMO).

The problem is, for every Brown , SCOTUS passes a few Lochners.

There will always be discontent in some quarters after a decision, but deciding something in completely opposition to the position of the rest of the country is something that SCOTUS should not do without the most compelling reasons, reasons compelled by the heightened scrutiny test. Foreign practices should not compel SCOTUS' actions, for the reasons I stated before.

	04-03-2005 20:54									#149
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quote: Originally posted by Imran Siddiqui Yes, it's standard practice for him. Especially in cases where he only has 2 other justices defending his view

You mean Thomas plus one other Justice, right?

	04-03-2005 20:54									#150
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Though you do realize the heightened scrutiny test is solely a Court invention, right? No one actually voted on having such a test for violations of the 14th Amendment. So I wonder what is the difference between using any Court invention in determining if there is a compelling reason to strike down law? Compelling reason is of course to be decided by the Court which is entrusted with such power.